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DECISION 



JUDGE LEAVITT, OF OHIO, 

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YALLANDIGHAM 



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Habeas Corpus Case. 



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PHILADELPHIA: 

PRINTED FOR GRATUITOUS DISTRIBUTION. 

1863. 



DECISION OF JUDGE LEAVITT 



VALLANDIGHAM HABEAS CORPUS CASE. 



At ten o'clock,, on the morning of May 16, 1863, the Circuit 
Court room was crowded to hear the decision of Judge Leavitt 
in the application of C. L. Yallandigham for a writ of habeas 
corpus. ' The following is the decision of the court : 

EX PARTE— C. L. YALLANDIGHAM— HABEAS CORPUS. 

This case is before the court on the petition of Clement L. 
Yallandigham, a citizen of Ohio, alleging that he was unlaw- 
fully arrested at his home in Dayton, in this State, on the night 
of the 5th of May inst., by a detachment of soldiers of the 
army of the United States, acting under the orders of Am- 
brose E. Burnside, a Major-General in the army of the United 
States, and brought, against his will, to the city of Cincinnati, 
where he has been subjected to a trial before a Military Com- 
mission, and is still detained in custody and restrained of his 
liberty. The petitioner also avers that he is not in the land 
or naval service of the United States, and has not been called 
into active service in the militia of any State ; and that his 
arrest, detention and trial, as set forth in his petition, are 
illegal, and in violation of the Constitution of the United 
States. The prayer is, that a writ of habeas corpus may issue 
requiring General Burnside to pro^iuce the body of the peti- 
tioner before this court, with the cause of his cajytion and de- 
tention. Accompanying the petition is a statement of the 
charges or specifications on which he alleges he was tried 



before the Military Commission. For the purposes of this 
decision, it is not necessary to notice these charges specially, 
but it may be stated in brief that they impute to the petitioner 
the utterance of sundry disloyal opinions and statements, in a 
public speech at the town of Mt. Vernon, in the State of Ohio, 
on- the 1st of May inst., with the knowledge " that they did 
aid and comfort and encourage those in arms against the Go- 
vernment, and could but induce in his hearers a distrust in 
their own Government and a sympathy for those in arms 
against it, and a disposition to resist the laws of the land." 
The petitioner does not state what the judgment of the Military 
Commission is, nor is the court informed whether he has been 
condemned or acquitted on the charges exhibited against him. 
It is proper to remark here, that on the presentation of the 
petition the court stated to the counsel for Mr. Yallandigham 
that, according to the usages of the court, as well as of other 
courts of high authority, the writ was not grantable of course, 
and would only be allowed on a sufficient showing that it ought 
to issue. The court is entirely satisfied of the correctness of 
the course thus indicated. The subject was fully examined by 
the learned Justice Swayne, when present, the presiding judge 
of this court, on a petition for a habeas corpus, presented at 
the last October term ; a case to which further reference will 
be presently made. I shall now only note the authorities on 
this point, which seem to be entirely conclusive. Peters, 201, 
Gushing, R. 285 ; Ilurd on Raheas Corpus, 222-23-24. In 
pursuance of this ruling, an order was made by the court that 
notice be given to General Burnside, of the pendency in the 
court of the application for the writ, to the end that he might 
appear by counsel or otherwise to oppose the granting of the 
writ. That distinguished General has accordingly presented 
a respectful communication to the court, stating generally and 
argumentatively the reasons of the arrest of Mr. Yallandig- 
ham, and has also authorized able counsel to represent him in 
resistance of the application for the writ. And the case has 
been argued at great length, and with great ability on the 
motion for its allowance. 



It is proper to remark further, that when the petition was 
presented, the court made a distinct reference to the decision 
of this court in the case of Bethuel Rupert, at October term, 
1862, before noticed, as an authoritative precedent for its 
action on this application. On full reflection, I do not see 
how it is possible for me, sitting alone in the Circuit Court, to 
ignore the decision, made upon full consideration by Justice 
Swayne, with the concurrence of myself, and which, as refera- 
ble to all cases involving the same principle, must be regarded 
as the law of this court until reversed by a higher court. The 
case ot Rupert was substantially the same as that of the present 
petitioner. He set out in his petition what he alleged to be an 
unlawful arrest by the order of a military officer, on a charge 
imputing to him acts of disloyalty to the Government, and 
sympathy with the rebellion against it, and an unlawful deten- 
tion and imprisonment as the result of such order. The appli- 
cation, however, in the case of Rupert, difi'ered from the one 
now before the court, in this, that affidavits were exhibited in- 
tended to disprove the charge of disloyal conduct imputed to 
him ; and also in this, that there was no pretence or showing 
by Rupert that there had been any investigation or trial by 
any court of the charges against him. 

The petition in this case is addressed to the Judges of the 
Circuit Court, and not to a single Judge of that court. It 
occurs from the absence of Mr. Justice Swayne that the Dis- 
trict Judge is now holding the Circuit Court, as he is author- 
ized to do by law. But thus sitting, would it not be in violation 
of all settled rules of judicial practice, as well as of courtesy, 
for the District Judge to reverse a decision of the Circuit 
Court, made when both judges were on. the bench ? It is well 
known that the District Judge, though authorized to sit with 
the Circuit Judge in the Circuit Court, does not occupy the 
same official position, and that the latter judge, when present, 
is, ex ojjivio, the Presiding Judge. It is obvious that confusion 
and uncertainty, greatly impairing the respect due to the ad- 
judications of the Circuit Courts of the United States, would 
result from the assumption of such an exercise of power by the 



District Judo-e. It wonld not only be disrespectful to the 
Superior Judge, but would evince in the District Judge, an 
utter want of appreciation of his true official connection with 
the Circuit Court. 

Now, in passing upon the application of Rupert, Mr, Justice 
Swayne in an opinion of some length, though not written, dis- 
tinctly held, that this court would not grant the writ of habeas 
corpus, when it appeared that the detention or imprisonment 
was under ' military authority. It is true, that Rupert was a 
man in humble position — unknown beyond the narrow circle 
in which he moved ; while the present petitioner has a wide- 
spread fame as a prominent politician and statesman. But no 
one will insist that there should be any difference in the prin- 
ciples applicable to the two cases. If any distinction were al- 
lowable, it would be against him of admitted intelligence and 
distinguished talents. 

I might with entire confidence place the grounds of action I 
propose in the present case, upon the decision of the learned 
judge in that just referred to. Even if I entertained doubts of 
the soundness of his views, I see no principle on which I could 
be justified in treating the opinion as void of authority. But 
the counsel of Mr. Vallandigham was not restricted in the 
argument of this motion to this point. It seemed due to him 
that the court should hear what could be urged against the 
legality of the arrest, and in favor of the interposition of the 
court in behalf of the petitioner. And I have been greatly 
interested in the forcible argument Avliich has been submitted, 
though unable to concur with the speaker in all his conclu- 
sions. 

If it were my desire to do so, I have not now the physical 
strength to notice or discuss at length the grounds on which 
the learned counsel has attempted to prove the illegality of 
General»Burnside's order for the arrest of INIr. Yalhindigham, 
and the duty of the court to grant the writ applied for. The 
basis of the whole argument is the fact that Mr. Yallading- 
ham, not being in the military or naval service of the Govern- 
ment, and not therefore subiect to the rules and articles (^f 



War, was not liable to arrest under or by military power. And 
the various provisions of the Constitution, intended to guard 
the citizen against unlawful arrests and imprisonments, have 
been cited and urged upon the attention of the court as having a 
direct bearing on the point. It is hardly necessary to quote 
these excellent guarantees of the rights and liberties of an 
American citizen, as they are familiar to every reader of the 
Constitution. And it may be conceded that if, by a just con- 
struction of the constitutional powers of the Government, in 
the solemn emergency now existing, they are applicable to, 
and must control, the question of the legality of the arrest of 
the petitioner, it cannot be sustained for the obvious reason 
that no warrant was issued " upon probable cause, supported 
by oath or affirmation," as is required in ordinary arrests for 
alleged crimes. But are there not other considerations of a 
controlling character applicable to the question ? Is not the. 
court imperatively bound to regard the present state of the 
country, and, in the light which it throws upon the subject, to 
decide upon the expediency of interfering "with the exercise of 
the military power as invoked in the pending application ? 
The court cannot shut its eyes to the grave fact that war exists, 
involving the most imminent public danger, and threatening 
the .subversion and destruction of the Constitution itself. In 
my judgment, when the life of the Republic is imperiled, he 
mistakes his duty and obligation as a patriot, who is not will- 
ing to concede to the Constitution such a capacity of adapta- 
tion to circumstances as may be necessary to meet a great 
emergency, and save the nation from hopeless ruin. Self-pres- 
ervation is a parmount law, which a nation, as well as an indi- 
vidual, may find it necessary to invoke. Nothing is hazarded 
in saying, that the great and far seeing men who framed the 
Constitution of the United States, supposed they were laying 
the foundations of our National Government on an immovable 
basis. They did not contemplate the existence of the state of 
things with which the nation is now unhappily confronted ; the 
heavy pressure of which is felt by every true patriot. They 
did not recognize the right of Secession by one or more States, 



8 

for the obvious reason that it would have been an incorporation 
of an element in the Constitution for the destruction of the 
Union. In their glowing visions of futurity, there was no fore- 
shadowing of a period, when the people of a large geographical 
section would be guilty of the madness and the crime of arraying 
themselves in rebellion against a government, under whose 
mild and benignant sway there was so much of hope and pro- 
mise for the coming ages. We need not be surprised, there- 
fore, that, in the organic law which they gave us, they 
made no specific provision for such a lamentable occurrence. 
They did, however, distinctly contemplate the possibility of 
foreign war, and vested in Congress the power to declare its 
existence, and "to raise and support armies" and "provide 
and maintain a navy." They were aware that the grant of 
these powers implied all other powers necessary to give them 
full effect. They also declared that the President of the 
United States " shall be Commander-in-Chief of the Army 
and Navy, and of the Militia of the several States when 
called into actual service," and they placed upon him the 
solemn obligation " to take care that the laws be faithfully 
executed." Under this last named provision, and in reference 
to a local rebellion, in which the laws of the Union were ob- 
structed, the act of the 28th of February, 1795, was passed, 
providing, in substance, that whenever in any State the'^civil 
authorities of the Union were unable to enforce the laws, the 
President shall be empowered to call out such military force as 
might be necessary for the emergency. Fortunately for the 
country, this law was in force when several States of the Union 
repudiated their allegiance to the National Government, and 
placed themselves in armed rebellion against it. It was suffi- 
ciently comprehensive in its terms to meet such an occurrence, 
although it was not a case within the contemplation of Con- 
gress when the law was enacted. It was under this statute 
that the President issued his Proclamation of the 15th of 
April, 1861. From that time the country has been in a state 
of war, the history and progress of which are familiar to all. 
More than two years have elapsed, during which the treasure 



9 

of the nation has been lavishly contributed and blood has freely 
flowed, and this formidable rebellion is not yet subdued. The 
energies of the loyal people of the Union are to be put to 
further trials, and in all probability the enemy is yet to be 
encountered on many a bloody field. 

It is not to be disguised that our country is in imminent 
peril, and that the crisis demands of every American citizen a 
hearty support of all proper means for the restoration of the 
Union and the return of an honorable peace. Those placed 
by the people at the head of the Government are earnestly 
and sincerely devoted to its preservation and perpetuity. The 
President may not be the man of our choice, and the measures 
of his Administration may not be such as all can fully ap- 
prove. But these are minor considerations, and can absolve 
no man from the paramount obligation of lending his aid for 
the salvation of his country. All should feel that no evil they 
can be called oh to endure as the result of war is comparable 
with the subversion of our chosen Government, and the horrors 
which must fbllow from such a catastrophe. 

I have referred thus briefly to the present crisis of the 
country as having some bearing on the question before the 
court. It is clearly not a time when any one connected with 
the Judicial Department of the Government should allow him- 
self, except from the most stringent obligations of duty, to 
embarrass or thwart the Executive in his efi"orts to deliver the 
country from the dangers which press so heavily upon it. 
Now, the question which I am called upon to decide is, whether 
General Burnside, as an agent of the Executive Department 
of the Government, has transgressed his authority in ordering 
the arrest of Mr. Vallandigham. If the theory of his counsel 
is sustainable, that there can ^e no legal arrest except by war- 
rant based on an aflidavit of probable cause, the conclusion 
would be clear, that the arrest was illegal. But I do not think 
I am bound to regard the inquiry as occupying this narrow 
base. General Burnside, by the order of the President, has 
been designated and appointed to take the military supervision 
of the Department of the Ohio, composed of the States of Ken- 



10 

tucky, Ohio, Indiana, Illinois and Michigan. The precise ex- 
tent of his authority in this responsible position are not known 
to the court. It may, however, be properly assumed as a fair 
presumption, that the President has clothed him with all the 
powers necessary to the efficient discharge of his duties in the 
station to which he has been called. lie is the representative 
and agent of the President, within the limits of his Depart- 
ment. In time of war the President is not above the Consti- 
tution, but derives his power expressly from the provision of 
that instrument, declaring that he shall be Commander-in- 
Chief of the Army and Navy. The Constitution does not 
specify the powers he may rightfully exercise in this character, 
nor are they defined by legislation. No one denies, however, 
that the President, in this character, is invested with very high 
powers, which, it is well known, have been exercised on various 
occasions during the present rebellion. A memorable instance 
of its exercise is seen in the Emancipation Proclamation issued 
by the President as Commander-in-Chief, and which he justifies 
as a military necessity. It is, perhaps, not easy to define what 
acts are properly within this designation, but they must un- 
doubtedly be limited to such as are deemed essential to the 
protection and preservation of the Government and the Con- 
stitution, which the President has sworn to support and defend. 
And in deciding what he may rightfully do under this power, 
where there is no express legislative declaration, the President 
is guided solely by his own judgment and discretion, and is 
only amenable for an abuse of his authority by impeachment, 
prosecuted according to the requirement of the Constitution. 
The occasion which calls for the exercise of this power exists 
only from the necessity of the case ; and when the necessity 
exists, there is a clear justification of the act. 

If this view of the power of the President is correct, it un- 
doubtedly implies the right to arrest persons, who, by their 
mischievous acts of disloyalty, impede or endanger the military 
operations of the Government. And, if the necessity exists, 
I see no reason why the power does not attach to the officer or 
general in command of a military department. The only 



11 

reason why the appointment is made, is that the President 
cannot discharge the duties in person. He, therefore, consti- 
tutes an agent to represent him, clothed with the necessary 
power for the efficient supervision of the military interests of 
the Government throughout the department. And it is not 
necessary that martial law should be proclaimed or exist, to 
enable the general in command to perform the duties assigned 
to him. Martial law is well defined by an able jurist to be 
^'the will of a military commander operating without any 
restraint, save his judgment, upon the lives, upon the persons, 
upon the entire social and individual condition of all over 
whom this law extends." It cannot be claimed that this law 
was in operation in General Burnside's department, when Mr. 
Vallandigham was arrested. . 

Nor is it necessary that it should have been in force to 
justify the arrest. The power vested by virtue of the authority 
was conferred by the appointment of the President. Under 
that appointment General Burnside assumed the command of 
this department.' That he was a man eminently fitted for the 
position there is no room for a doubt. He had achieved during 
his brief military career a national reputation as a wise, dis- 
creet, patriotic and brave general. He not only enjoyed the 
confidence and respect of the President and Secretary oi War, 
but of the whole country. He had nobly laid his party prefer- 
ences and predilections upon the altar of his country, and con- 
secrated his life to her service. It was known that the widely- 
extended department, with the military supervision of which 
he was charged, was one of great importance, and demanded 
great vigilance and ability in the administration of its military 
concerns. Kentucky was a border State, in which there was 
a large element of disaffection toward the National Govern- 
ment, and sympathy with those in rebellion against it. Formi- 
dable invasions have been attempted, and arc now threatened. 
Four of the States have a river border, and are in perpetual 
dano-er of invasion. In Ohio, Indiana and Illinois a class of 
mischievous politicians had succeeded in poisoning the minds 
of a portion of the community with the rankest feelings of dis- 



12 

loyalty. Artful politicians, disguising their latent treason 
under hollow pretensions of devotion to the Union, were 
striving to disseminate their pestilent heresies among the 
masses of the people. The evil was one of alarming magni- 
tude, and threatened seriously to impede the military opera- 
tions of the Government, and greatly to protract the suppres- 
sion of the rebellion. General Burnside was not slow to 
perceive the dangerous consequences of these disloyal efforts, 
and resolved, if possible, to suppress them. In the exercise of 
his discretion, he issued the order — No. 38 — which has been 
brought to the notice of the court. I shall not comment on 
that order, or say anything more in vindication of its expedi- 
ency. I refer to it only because General Burnside, in his 
manly and patriotic communication to the court, has stated 
fully his motives and reasons for issuing it, and also that it 
was for its supposed violation that he ordered the arrest of Mr. 
Vallandigham. He has done this under his responsibility as 
the Commanding General of this department, and in accordance 
with what he supposed to be the power vested in him by the 
appointment of the President. It was virtually the act of the 
Executive Department under the power vested in the President 
by the Constitution ; and I am unable to perceive on what 
principle this judicial tribunal can be invoked to annul or re- 
verse it. In the judgment of the Commanding General, the 
emergency required it, and whether he acted wisely or dis- 
creetly is not properly subject for judicial review. 

It is worthy of remark here, that this arrest was not made 
by General Burnside under any claim or pretension that he 
had authority to dispose of or punish the party arrested, 
according to his own will, without trial and proof of the facts 
alleged as the ground for the arrest, but with a view to an 
investigation by a military court or commission. Such an 
investigation has taken place, the result of which has not been 
made known to this court. Whether the Military Commission 
for the trial of the charges against Mr. Vallandigham was 
legally constituted and had jurisdiction of the case, is not a 
question before this court. There is clearly no authority in 



13 

this tjourt, on the pending motion, to revise or reverse the pro- 
ceedings of the Military Commission, if they were before the 
<30urt. The sole question is, whether the arrest was legal ; 
and as before remarked, its legality depends on the necessity 
which oxisted for making it; and of that necessity, for the 
reason stated, this court cannot judicially determine. General 
Burnside is unquestionably amenable to the Executive Depart- 
ment for his conduct. If he has acted arbitrarily and upon 
insufficient reasons, it is within the power, and would be the 
duty, of the President, not only to annul his acts, but to visit 
him with decisive marks of his disapprobation. To the Presi- 
dent, in his capacity of Commander-in-Chief of the Army, he 
must answer for his official conduct. But under our Constitu- 
tion, which studiously seeks to keep the executive, legislative 
and judicial departments of the Government from all inter- 
ference and conflict with each other, it would be an un- 
warrantable exercise of the judicial power to decide that a 
co-ordinate branch of the Government, acting under its high 
responsibilities, had violated the Constitution, in its letter or 
its spirit, by authorizing the arrest in question. Especially in 
these troublous times, when the national life is in peril, and 
when union and harmony among the difierent branches of the 
Government are so imperatively demanded, such interference 
would find no excuse or vindication. If the doctrine is to 
obtain, that every one charged with and guilty of acts of mis- 
chievous disloyalty, not within the scope of the criminal laws 
of the land, in custody under military authority, is to be set 
free by courts or judges on habeas corpus, it requires no argu- 
ment to prove that the most alarming conflicts must follow, 
and the power of the Government be most seriously impaired. 
I dare not, in my judicial position, assume the fearful responsi- 
bility implied in the sanction of such a doctrine. 

And here, without subjecting myself to the charge of trench- 
ing upon the domain of political discussion, I may be indulged 
in the remark that there is too much of the pestilential leaven 
of disloyalty in the community. There is a class of men in 
the loyal States who seem to have no just appreciation of the 



14 

deep criminality of those who are in arms avowedly for the 
overthrow of the Government, and the establishment of a 
Southern Confederacy. They have not, I fear, risen to any 
right estimate of their duties and obligations, as American 
citizens, to a Government which has strewn its blessings with 
a profuse hand. I may venture the assertion that the page of 
history Avill be searched in vain for an example of a rebellion 
so wholly destitute of excuse or vindication, and so dark with 
crime, as that which our bleeding country is now called upon 
to confront, and for the suppression of which all her energies 
are demanded. Its cause is to be found in the unhallowed 
ambition of political aspirants and agitators, who boldly avow 
their aim, not the establishment of, a Government for the better 
security of human rights, but one in which all political power 
is to be concentrated in an odious and despotic oligarchy. It 
is indeed consolatory to know that in most sections of the 
North, those who sympathize with the rebellion, are not so 
numerous and formidable, as the apprehensions of some would 
seem to indicate. It may be assumed, I trust, that in most of 
the Northern States, reliable and unswerving patriotism is the 
rule, and disloyalty and treason the exception. But there should 
be no division of sentiment upon this momentous question. 
Men should know, and lay the truth to their heart, that there 
is a course of conduct not involving overt treason, and not 
therefore subject to punishment as such, which nevertheless 
implies moral guilt and a gross offense against their country. 
Those who live under the protection and enjoy the blessings 
of our benignant Government, must learn that they cannot 
stab its vitals with impunity. If they cherish hatred and 
hostility to it, and desire its subversion, let them withdraw from 
its jurisdiction, and seek the fellowship and protection of those 
with whom they are in sympathy. If they remain ivith us, 
while they are not of us, they must be subject to such a course 
of dealin'T as the great law of self-preservation prescribes and 
will enforce. And let them not complain, if the stringent 
doctrine of military necessity should find them to be the legiti- 
mate subject of its action. I have no fears that the recognition 



15 

of this doctrine will lead to an arbitary invasion of the personal 
security, or personal liberty of the citizen. It is rare indeed 
that a charge of disloyalty will be made upon insufficient 
grounds. But if there should be an occasional mistake, such 
an occurrence is not to be put in competition with the preserva- 
tions of the life of the nation. And I confess, I am but little 
moved by the eloquent appeals of those who, while they in- 
dignantly denounce violations of personal liberty, look with 
no horror upon a despotism as unmitigated as the world has 
ever witnessed. 

But I can not pursue this subject further. I am aware 
there are points made by the learned counsel representing Mr. 
Vallandigham, to which I have not adverted. I have had 
neither time nor strength for a more elaborate consideration of 
the questions involved in this application. For the reasons 
which I have not attempted to set forth, I am led clearly to 
the conclusion that I cannot judicially pronounce the order of 
General Burnside for the arrest of Mr. Vallandigham as a 
nullity, and must, therefore, hold that no sufficient ground has I 
been exhibited for granting the writ applied for. And I may | 
properly add here, that I am fortified in my conclusion by the | 
fact just brought to my notice, that the Legislature of Ohio, at | 
its late session, has passed two statutes, in which the validity 
and legality of arrests in this State under military authority 
are distinctly sanctioned. This is a clear indication of the 
opinion of that body, that the rights and liberties of the people 
are not put in jeopardy by the exercise of the power in ques- 
tion, and is, moreover, a concession that the present state of 
the country requires and justifies its exercise. It is a clear 
intimation that the people of our patriotic State will sanction 
such a construction of the Constitution as, without a clear vio- 
lation of its letter, will adapt it to the existing emergency. 

There is one other consideration to which I may, perhaps, 
properly refer, not as a reason for refusing the writ applied for, 
but for the purpose of saying that, if granted, there is no pro- 
bability that it would be available in relieving Mr. Vallandig- 
ham from his present position. It is, at least, morally certain 



16 

it would not be obeyed. And I confess I am somewhat reluc- 
tant to authorize a process, knowing it would not be respected, 
and that the Court is powerless to enforce obedience. Yet, if 
satisfied there were sufficient grounds for the allowance of the 
writ, the consideration to which I have adverted would not be 
conclusive against it. 

Mr. Pugh then drew up an entry, to be made upon the 
records, which Judge Leavitt accepted, and ordered to be 
spread upon the minutes. The Court then adjourned. 



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